ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER KAREN M. FREEMAN-WILSON
Public Defender of Indiana Attorney General of Indiana
JOANNA GREEN THOMAS D. PERKINS
Deputy Public Defender Deputy Attorney General
LAURA L. VOLK
Deputy Public Defender
Deputy Public Defender
SUPREME COURT OF INDIANA
MATTHEW ERIC WRINKLES, )
) Supreme Court Cause Number
v. ) 82S00-9803-PD-170
STATE OF INDIANA, )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl Heldt, Judge
Cause No. 82C01-9407-CF-447
ON APPEAL FROM THE DENIAL OF POST-CONVICTION RELIEF
June 29, 2001
After a trial by jury, Matthew Eric Wrinkles was convicted of three counts
of murder in the shooting deaths of his wife Debbie Wrinkles, his brother-in-law
Mark Fulkerson, and his sister-in-law Natalie Fulkerson. Following the jurys recommendation, the
trial court sentenced him to death. We affirmed his convictions and sentence
on direct appeal. See Wrinkles v. State, 690 N.E.2d 1156 (Ind. 1997).
Thereafter, Wrinkles filed a petition for post-conviction relief and now appeals the denial
of that petition raising several issues for our review, which we consolidate and
rephrase as follows: (1) did Wrinkles receive ineffective assistance of trial counsel during
the guilt, penalty, and sentencing phases of trial; and (2) did Wrinkles receive
ineffective assistance of appellate counsel.
We affirm the post-conviction courts denial of Wrinkles petition for post-conviction relief.
Factual and Procedural Background
In June 1994, Wrinkles wife Debbie and the couples two children, Lindsay and
Seth, moved into the Evansville home of Mark and Natalie Fulkerson, Debbies brother
and sister-in-law. Wrinkles filed for divorce on June 30, 1994, and Debbie
obtained a protective order that same day prohibiting Wrinkles from having any contact
with her and the children.
At a provisional divorce hearing on July 20, 1994, Debbie agreed to a
rescission of the protective order, and Wrinkles and Debbie agreed that Debbie would
retain custody of the children but Wrinkles would have reasonable visitation rights.
Wrinkles and Debbie agreed to meet later that day at a local fast
food restaurant so that Wrinkles could see his children, whom he had not
seen in over a month. However, Debbie and the children never showed
up. Wrinkles called his divorce attorney, who told him that although nothing
could be done that night because the courts were closed, he would take
care of it tomorrow. Wrinkles, still frustrated, called the Fulkerson home to
speak with Debbie, but she was not there. When Debbie returned later
that night, she called Wrinkles to set up a meeting for the next
day, but there was no answer.
Around 2 a.m. on July 21, 1994, Wrinkles parked his truck a block
away from the Fulkerson home, put on camouflage clothing, painted his face, and
armed himself with a .357 magnum revolver and a knife. He then
climbed over a fence into the Fulkersons backyard, cut the telephone wires, and
kicked in the back door. Wrinkles first approached Mark in his bedroom,
shooting him four times in the presence of his three-year-old son. Awakened
by the gunshots, Debbie entered the bedroom hallway and saw that Wrinkles had
shot her brother. Debbie, who had already grabbed her gun for protection,
shot Wrinkles in the arm and then fell to the floor. Lindsay,
also awakened by the gunshots, entered the bedroom hallway and, upon seeing her
father about to shoot her mother, pleaded, Dad, please dont shoot Mom.
R. at 2090.
Wrinkles responded shut up and then shot Debbie in
the chest. R. at 2091. In the meantime, Natalie ran out
the front door. Wrinkles followed Natalie onto the front porch and shot
her in the face at close range. Subsequent autopsies revealed that Mark,
Debbie, and Natalie each died from gunshot wounds.
Police apprehended Wrinkles later that morning in Warrick County. The State charged
Wrinkles with three counts of murder that same day and filed a notice
of its intent to seek the death penalty on July 28, 1994.
The trial court appointed salaried, part-time public defenders Dennis Vowels and Michael Danks
to represent Wrinkles. The trial was held on May 15-19, 1995.
The defense theory at trial was that because of a combination of Debbie
depriving Wrinkles of access to his children and his methamphetamine addiction, Wrinkles broke
into the Fulkerson home to get his children and shot the victims only
after Debbie shot him and the other victims pointed guns at him.
The jury found him guilty as charged. The penalty phase was held
on May 20, 1995, and the jury returned a recommendation of death.
A month later, the trial court, finding that the multiple murder aggravator
the mitigators, imposed the death penalty. Wrinkles appealed his convictions and sentence,
and we affirmed. Wrinkles v. State, 690 N.E.2d 1156 (Ind. 1997).
Wrinkles then filed a petition for post-conviction relief, which the post-conviction court denied.
This appeal ensued.
Wrinkles raises several issues in this appeal, most of which are either waived
or are subject to the doctrine of res judicata.
We address the
merits of those that remain: (1) did Wrinkles receive ineffective assistance of
trial counsel during the guilt, penalty, and sentencing phases of trial; and (2)
did Wrinkles receive ineffective assistance of appellate counsel.
Standard of Review for Post-Conviction
Post-conviction procedures do not afford the convicted an opportunity for a super-appeal.
Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind. 2000), rehg denied, petition for
cert. filed, ___ U.S.L.W. ___ (U.S. Mar. 14, 2001) (No. 00-9185). Rather,
they create a narrow remedy for subsequent collateral challenges to convictions which must
be based on grounds enumerated in the post-conviction rules. Id.; Williams v.
State, 724 N.E.2d 1070, 1076 (Ind. 2000), cert. denied, 121 S. Ct. 886
(2001). Petitioners must establish their grounds for relief by a preponderance of
the evidence. Ind. Post-Conviction Rule 1(5). A petitioner who has been
denied post-conviction relief appeals from a negative judgment. Prowell v. State, 741
N.E.2d 704, 708 (Ind. 2001). Therefore, the petitioner must convince the court
that the evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the post-conviction court. Id.; Ben-Yisrayl, 729 N.E.2d at
106. Stated differently, [t]his Court will disturb a post-conviction courts decision as
being contrary to law only where the evidence is without conflict and leads
to but one conclusion, and the post-conviction court has reached the opposite conclusion.
Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998).
In the present case, the post-conviction court entered findings of fact and conclusions
of law in accordance with Indiana Post-Conviction Rule 1(6). A post-conviction courts
findings and judgment will be reversed only upon a showing of clear errorthat
which leaves us with a definite and firm conviction that a mistake has
been made. Prowell, 741 N.E.2d at 708; Ben-Yisrayl, 729 N.E.2d at 106.
Wrinkles, however, argues that we should apply the clearly erroneous standard with
a little more bite because the post-conviction courts findings of facts and conclusions
of law are a virtually verbatim copy of those proposed by the State.
Reply Br. of Appellant at 2 (quotation omitted). We recently addressed
a trial courts wholesale adoption of a partys findings of fact and conclusions
of law in Prowell:
It is not uncommon for a trial court to enter findings that are
verbatim reproductions of submissions by the prevailing party. The trial courts of
this state are faced with an enormous volume of cases and few have
the law clerks and other resources that would be available in a more
perfect world to help craft more elegant trial court findings and legal reasoning.
We recognize that the need to keep the docket moving is properly
a high priority of our trial bench. For this reason, we do
not prohibit the practice of adopting a partys proposed findings. But when
this occurs, there is an inevitable erosion of the confidence of an appellate
court that the findings reflect the considered judgment of the trial court.
This is particularly true when the issues in the case turn less on
the credibility of witnesses than on the inferences to be drawn from the
facts and the legal effect of essentially unchallenged testimony.
Prowell, 741 N.E.2d at 708-09. Although we reiterate the foregoing concerns here,
we decline Wrinkles invitation to modify our standard of review.
Standard of Review for Ineffective Assistance of Counsel
To establish a post-conviction claim alleging violation of the Sixth Amendment right to
effective assistance of counsel, a defendant must establish before the post-conviction court the
two components set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Williams v. Taylor, 529 U.S. 362, 390 (2000). First, a defendant must
show that counsels performance was deficient. Strickland, 466 U.S. at 687.
This requires showing that counsels representation fell below an objective standard of reasonableness
and that counsel made errors so serious that counsel was not functioning as
counsel guaranteed to the defendant by the Sixth Amendment. Id. at 687-88.
Second, a defendant must show that the deficient performance prejudiced the defense.
Id. at 687. This requires showing that counsels errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Id. To establish prejudice, a defendant must show
that there is a reasonable probability that, but for counsels unprofessional errors, the
result of the proceeding would be different. Id. at 694. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Further, counsels performance is presumed effective, and a defendant must offer strong and
convincing evidence to overcome this presumption. Ben-Yisrayl, 729 N.E.2d at 106.
Counsels poor trial strategy, bad tactics, a mistake, carelessness, or inexperience do not
necessarily amount to ineffective assistance of counsel.
Carr v. State, 728 N.E.2d
125, 131 (Ind. 2000).
I. Ineffective Assistance of Trial Counsel
A. Failure Adequately to Investigate, Develop, and Present an Insanity Defense
Wrinkles first contended before the post-conviction court that counsel were ineffective for not
adequately investigating, developing, and presenting an insanity defense. Wrinkles asserts that if
counsel had presented an insanity defense, the jury would have found him guilty
but mentally ill and consequently it would not have recommended, and the trial
court would not have imposed, the death penalty.
Attorney Vowels testified at the post-conviction hearing that their guilt phase theory was:
That [Wrinkles] had been deprived access to his children, that he was manipulated
by his deceased wife away from seeing his kids, that she had marshalled
[sic] her family in support of her efforts to keep Mr. Wrinkles away
from his children, that there had been arrangements made in a recent domestic
relations hearing for him to be around his kids, that she had violated
the intent and spirit of that agreement, which has happened just a very
short time before her death, that he was a frustrated man who had
no control over access to his children, that he went off, that it
just got to be too much for him.
P-C R. at 1205. Attorney Danks supplemented this theory at the post-conviction
hearing: Wrinkles was shot first, was wounded and then however else the shootings
occurred was a result of him being wounded. P-C R. at 1044.
In addition to this basic theory, counsel presented the trial testimony of neuropsychologist
Dr. Eric Engum. Dr. Engum evaluated Wrinkles on April 4-5, 1995.
On these days, Dr. Engum spent approximately thirteen hours with Wrinkles and performed
a battery of psychological tests that included objective psychological testing, neuropsychological testing, and
a subjective personality assessment. R. at 2989, 2990-91. Dr. Engum diagnosed
Wrinkles with severe Mixed Personality Disorder, Delusional Disorder which became increasingly acute in
the last sixty or ninety days before the shootings, amphetamine dependence with the
likelihood of amphetamine-induced psychotic disorder with delusions, cannabis dependence, and alcohol dependenceall of
which are recognized mental illnesses. R. at 2994-96. Dr. Engum elaborated
that people who are highly dependent on methamphetamine, such as Wrinkles who used
methamphetamine on a daily basis for ten years, become very agitated, extremely restless,
they dont sleep well, theyre easily angered, they have very low frustration tolerance
the slightest thing will set them off. They also develop [a]
very highly attuned sense of suspiciousness and paranoia. R. at 2995, 3008.
Dr. Engum ultimately concluded that although Wrinkles judgment was substantially impaired at
the time of the shootings, he was sane; that is, Wrinkles knew what
he was doing and could conform his conduct to the requirements of the
law. R. at 2997.
Despite counsels theory and Dr. Engums testimony, Wrinkles contends that counsel should have
presented an insanity defense for primarily two reasons. First, Wrinkles argues that
counsels theory rings of self-defense, which requires a defendant to be in a
place where he had the right to be. Wrinkles asserts that because
he broke into the Fulkerson home, he was not in a place where
he had the right to be; therefore, self-defense was not legally viable.
It is true that counsels theory could not have completely exonerated Wrinkles. However,
counsel could have employed it in an attempt to avoid murder convictions and
the death penalty. There is no requirement that a theory must have
the potential to completely exonerate a defendant before it can be used without
ineffective assistance of counsel implications.
See Allen v. State, 686 N.E.2d 760,
778 (Ind. 1997) (finding no ineffective assistance where defense counsels theory was not
completely to exonerate defendant but to avoid murder conviction and death penalty in
favor of conviction for voluntary manslaughter).
Second, Wrinkles claims that contrary to Dr. Engums conclusion, he was indeed insane
at the time of the shootings because of methamphetamine-induced psychosis. Wrinkles relies
on the post-conviction testimony of toxicologist Dr. Michael Evans and clinical psychologist Dr.
Robert Smith. Dr. Evans, who did not interview Wrinkles, testified that methamphetamine
is the strongest drug in terms of addiction, it produces paranoia and violence,
and long-term use can cause genetic changes in the brain. P-C R.
at 2495, 2497, 2507. Dr. Evans then concluded that based on hair
samples taken from Wrinkles three weeks after the shootings, Wrinkles was addicted to
methamphetamine at the time of the shootings. P-C R. at 2509.
Dr. Smith testified that based on tests performed on Wrinkles approximately five years
after the shootings, Wrinkles was insane at the time of the shootings because
of methamphetamine-induced psychosis. P-C R. at 2567, 2582, 2583.
Although Dr. Evans elaborated more on the adverse effects of methamphetamine use in
his post-conviction testimony than Dr. Engum did in his trial testimony, Dr. Engum
and Dr. Evans both concluded that Wrinkles was addicted to methamphetamine at the
time of the shootings. Similarly, Dr. Engum and Dr. Smith both diagnosed
Wrinkles with methamphetamine-induced psychosis; their only point of disagreement concerned Wrinkles sanity at
the time of the shootings. Here, Wrinkles has shown only that
two experts came to different conclusionsa fact that can hardly be said to
form the basis for an ineffective assistance claim.
In addition, although not officially presenting an insanity defense, counsel presented evidence of
Wrinkles methamphetamine addiction and its role in the shootings throughout trial. They
presented it during opening statement, R. at 1824; through four lay witnesses, R.
at 2834, 2843, 2861-62, 2931-32, 2935-37; through Dr. Engum, R. at 2994-97, 3002,
3006-07; through Wrinkles, R. at 2711-12, 2715, 2720, 2722-23; and during closing argument,
R. at 3141, 3143.
In fact, attorney Vowels testified at the post-conviction hearing that counsel did not
want to introduce significant evidence of Wrinkles methamphetamine use because they thought it
would put an additional layer of bad on Wrinkles and make him appear
as a heavy doper. P-C R. at 1211, 1320. Attorney Danks
testified at the post-conviction hearing that it was a tactical decision not to
put on more evidence about Wrinkles methamphetamine use because they thought it would
be more harmful than helpful. P-C R. at 1145.
Counsel is given significant deference in choosing a strategy which, at the time
and under the circumstances, he or she deems best.
Potter v. State,
684 N.E.2d 1127, 1133 (Ind. 1997); see also Conner, 711 N.E.2d at 1248
(Counsel is afforded considerable discretion in choosing strategy and tactics, and we will
accord that decision deference.); State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997)
([A]lthough egregious errors may be grounds for reversal, we do not second-guess strategic
decisions requiring reasonable professional judgment even if the strategy or tactic, in hindsight,
did not best serve the defendants interests.). Such is the case here.
We cannot say that the post-conviction court erred in concluding that counsel
were not ineffective for failing to present an insanity defense when (i) their
own trial expert concluded that Wrinkles was sane at the time of the
shootings; (ii) counsel presented evidence of Wrinkles methamphetamine addiction and its role in
the shootings throughout trial; and (iii) counsel stated that it was a tactical
decision not to take his addiction any farther. See Holmes, 728 N.E.2d
at 172 (finding that counsel was not ineffective for not presenting evidence regarding
the defendants mental ability to plan and carry out the crime when counsel
introduced evidence of the defendants mental illnesses at trial).
B. Inadequate Preparation of Defense Witnesses
Wrinkles asserted before the post-conviction court that counsel were ineffective because they failed
adequately to prepare him and Dr. Engum for their trial testimony. In
support of this contention, Wrinkles relies exclusively on a discrepancy between his and
Dr. Engums trial testimony concerning the sequence in which the victims were shot.
Wrinkles testified that he shot Debbie, Mark, and then Natalie. R.
at 2730-32. However, Dr. Engum testified that Wrinkles told him during the
April 1995 evaluation that he shot Natalie, Mark, and then Debbie. R.
at 3075. Wrinkles seems to argue that if counsel had adequately prepared
him and Dr. Engum, they would have been aware of this discrepancy and
therefore they would have presented only one sequence of the shootings at trial.
Not having done so, Wrinkles alleges that his and counsels credibility was
Wrinkles argument is not persuasive. Attorney Danks, who examined Wrinkles at trial,
testified at the post-conviction hearing that he prepared Wrinkles by talking with him
about his testimony and about the defense theory of the case. P-C
R. at 1043. Attorney Vowels testified that he engaged in role-play with
Wrinkles before trial. P-C R. at 1204. Attorney Danks billing records
reflect that he spent approximately 19.75 hours consulting with Wrinkles prior to trial,
including 5.5 hours the day before voir dire started, P-C R. at 1162-68,
while attorney Vowels billing records show that he spent 33.5 hours consulting with
Wrinkles prior to trial, also including 5.5 hours the day before voir dire
started, P-C R. at 1296-1310.
Attorney Danks, who also examined Dr. Engum at trial, testified at the post-conviction
hearing that he went over Dr. Engums testimony with him. P-C R.
at 1044. In like fashion, Attorney Vowels also testified that he discussed
Dr. Engums testimony with him. P-C R. at 1203. Counsels billing
records support their testimony: attorney Danks billing records reflect that he spent
4.25 hours consulting with Dr. Engum before trial, including 1.5 hours the day
before Dr. Engum testified, P-C R. at 1166, 1167, while attorney Vowels billing
records show that he spent 3.5 hours consulting with Dr. Engum before trial,
P-C R. at 1307, 1309, 1310.
Wrinkles real argument seems to be that counsel found out too late about
the discrepancy and therefore their desperate attempt to fix the problem was not
sufficient. Reply Br. of Appellant at 9. The record shows that
counsel were aware of the two sequences of the shootingsat the very least,
the night before Dr. Engum testified. R. at 3071-72. Consequently, Dr.
Engum did not testify on direct examination about the sequence of the shootings
about which Wrinkles told him during the April 1995 evaluation. However, this
information came out on cross-examination. R. at 3071. Dr. Engum then
gave a possible explanation for the discrepancy. R. at 3078-79. He
testified that Wrinkles recollection of the sequence of the shootings may have been
impaired by methamphetamine and alcohol. R. at 3076, 3078, 3080. Further,
Dr. Engum explained that he was hired as an expert to diagnose Wrinkles
and evaluate his state of mind at the time of the shootingsnot to
testify on behalf of the defense as a factual witness regarding the sequence
of the shootings. R. at 3076-77. Counsels performance was not deficient.
Even assuming counsels performance was deficient, Wrinkles has failed to show prejudice.
Basically, the discrepancy in Wrinkles and Dr. Engums testimony amounts to a difference
between Wrinkles admitting that he shot the victims in one order as opposed
to another. It does not change the fact that Wrinkles dressed in
camouflage, painted his face, armed himself, cut the phone lines, broke into the
Fulkerson home, and shot and killed his wife, brother-in-law, and sister-in-law. The
post-conviction court did not err in concluding that counsel were not ineffective on
C. Failure to Object
Wrinkles alleged before the post-conviction court that counsel acted deficiently by not objecting
to various statements made by witnesses and to various evidence proffered by the
State. In order to prove ineffective assistance of counsel due to the
failure to object, a defendant must prove that an objection would have been
sustained if made and that he was prejudiced by the failure. Timberlake
v. State, 690 N.E.2d 243, 259 (Ind. 1997). The alleged instances can
be summarized as follows: (1) the trial court required Wrinkles to wear
a stun belt during trial without establishing a need for it on the
record; (2) the victim impact statement which was contained in the Pre-sentence Investigation
Report; (3) evidence of Wrinkles prior bad acts; (4) the prosecutors comments about
Wrinkles during closing argument; (5) the testimony of Debbie White, a States witness
whose name was not provided to counsel prior to trial; and (6) admission
of the murder weapon.
Wrinkles contends that counsel were ineffective for not objecting when the trial court
ordered him to wear a stun belt during trial because the trial court
did not place the reasons supporting the use of the stun belt on
the record and no such reasons even existed. Wrinkles
asserts that utilization
of the stun belt, which was conspicuous to at least seven jurors, undermined
[his] presumption of innocence and made him appear dangerous and uncontrollable in front
of the jurors who would help decide whether he would live or die.
Br. of Appellant at 29; Reply Br. of Appellant at 11.
He claims that at the very least he is entitled to a new
penalty phase of trial.
A defendant has the right to appear in front of a jury without
physical restraints, unless such restraints are necessary to prevent the defendants escape, to
protect those present in the courtroom, or to maintain order during trial.
Bivins v. State, 642 N.E.2d 928, 936 (Ind. 1994). This right springs
from the basic principle of American jurisprudence that a person accused of a
crime is presumed innocent until proven guilty beyond a reasonable doubt. Sweet
v. State, 498 N.E.2d 924, 929 (Ind. 1986), superceded on other grounds by
Ind. Evidence Rule 404; see also Holbrook v. Flynn, 475 U.S. 560, 567
(1986); Estelle v. Williams, 425 U.S. 501, 503 (1976). For this presumption
to be effective, courts must guard against practices that unnecessarily mark the defendant
as a dangerous character or suggest that his guilt is a foregone conclusion.
Sweet, 498 N.E.2d at 929; see also Holbrook, 475 U.S. at 567-68;
Estelle, 425 U.S. at 503. As such, the facts and reasoning supporting
the trial judges determination that restraints are necessary must be placed on the
record. Coates v. State, 487 N.E.2d 167, 169 (Ind. Ct. App. 1985),
overruled on other grounds by Hahn v. State, 533 N.E.2d 618 (Ind. Ct.
App. 1989); see also Roche v. State, 690 N.E.2d 1115, 1123 (Ind. 1997)
([T]he trial court should have made a record of the reasons for requiring
the restraints . . . .), habeas corpus conditionally granted by Roche v.
Anderson, 132 F. Supp 2d 688 (N.D. Ind. 2001).
Typical methods of restraint include handcuffs, shackles, security chairs, and gagging a defendant.
See James v. State, 716 N.E.2d 935, 941 (Ind. 1999); Kindred v.
State, 540 N.E.2d 1161, 1179 (Ind. 1989); Avant v. State, 528 N.E.2d 74,
77-78 (Ind. 1988); see also Illinois v. Allen, 397 U.S. 337, 343-44 (1970)
(We think there are at least three constitutionally permissible ways for a trial
judge to handle an obstreperous defendant : (1) bind and gag him,
thereby keeping him present; (2) cite him for contempt; (3) take him out
of the courtroom until he promises to conduct himself properly.). A more
recent form of restraint is the stun belt.
The stun belt, also known as the REACT
(Remote Electronic Activated Control Technology)
security belt, is an electronic shocking device that is secured around the wearers
waist. Shelley A. Nieto Dahlberg, Comment,
The REACT Security Belt: Stunning Prisoners
and Human Rights Groups into Questioning Whether its Use is Permissible under the
United States and Texas Constitutions, 30 St. Marys L.J. 239, 246 (1998).
was first introduced into the criminal justice system in the early 1990s.
Id. Developers of the belt promote it as an alternative to
using leg-irons or shackles when transporting potentially dangerous or violent prisoners; however, the
belt more recently is being used on defendants in courtrooms during trials.
Id. There are approximately 1,000 of these belts in circulation in the
United States. Amnesty International, Stopping the Torture Trade 29 (2001).
Two nine-volt batteries connected to prongs that are attached to the wearer over
the left kidney region power the belt. Julie Brienza,
Stun Belts Zapped
by Civil Liberties Groups, 35 Trial 99, 100 (Apr. 1999); Dahlberg, supra, at
247. The belt may be activated from as far away as 300
feet, and once activated it delivers an eight-second, 50,000-volt shock that cannot be
stopped. Amnesty International, supra, at 28; Brienza, supra, at 100; Dahlberg, supra,
at 247. This high-pulsed electrical current travels through the body along blood
channels and nerve pathways. Dahlberg, supra, at 247-48. The belts electrical
emission knocks down most of its victims, causing them to shake uncontrollably and
remain incapacitated for up to forty-five minutes. Dahlberg, supra, at 248; Colorado
v. Melanson, 937 P.2d 826, 835 (Colo. Ct. App. 1996). Activation may
also cause immediate and uncontrolled defecation and urination, and the belts metal prongs
may leave welts on the wearers skin requiring as long as six months
to heal. Dahlberg, supra, at 249. Activation may cause some wearers
to suffer heartbeat irregularities or seizures. Dahlberg, supra, at 250-52. Manufacturers
of the stun belt emphasize that the belt relies on the continuous fear
of what might happen if the belt is activated for its effectiveness.
Amnesty International, supra, at 29.
In Hawkins v. Comparet-Cassani, 33 F. Supp 2d 1244 (C.D. Cal. 1999), a
defendant who had a stun belt placed on him prior to a sentencing
hearing and later activated at the judges order filed a civil rights action
against the county, judge, sheriff, and others. The defendant sought, among other
things, a preliminary injunction against the Los Angeles County Sheriffs Department preventing the
placement and activation of stun belts on defendants pending the outcome of trial.
In response to this request, the trial judge in the United States
District Court for the Central District of California observed:
The stun belt, even if not activated, has the potential of compromising the
defense. It has a chilling effect. It is inherently difficult to
define in a particular judicial proceeding the boundary between permissible and impermissible conductthe
boundary between aggressive advocacy and a breach of order. An individual wearing
a stun belt may not engage in permissible conduct because of the fear
of being subjected to the pain of a 50,000 volt jolt of electricity.
For example, a defendant may be reluctant to object or question the
logic of a rulingmatters that a defendant has every right to do.
A defendants ability to participate in his own defense is one of the
cornerstones of our judicial system. A pain infliction device that has the
potential to compromise an individuals ability to participate in his or her own
defense does not belong in a court of law.
Further, if the defendant is shocked by the stun belt, the defense is
likely to be even more compromised. First, it is unreasonable to expect
a defendant to meaningfully participate in the proceeding following a shock. Second,
having been shocked for a particular conduct the defendant may presume that other
conduct, even if appropriate, may result in other shocks.
Id. at 1262. Finding a likelihood of success on the merits at
trial, the trial judge granted a preliminary injunction prohibiting the Los Angeles County
Sheriffs Department to either place or activate a stun belt on a prisoner
in his custody pending the outcome of trial. Id.
Although not all courts have taken this stance,
we agree with the observations
of the federal court judge and thus hold that henceforth stun belts may
not be used on defendants in the courtrooms of this State. This
is so because we believe that the other forms of restraint listed above
can do the job without inflicting the mental anguish that results from simply
wearing the stun belt and the physical pain that results if the belt
is activated. This, however, does not mean Wrinkles is entitled to relief.
Before trial began, the trial court informed counsel that Wrinkles would have to
wear either shackles or a stun belt during trial. P-C R. at
1139, 1326. Without objection counsel chose a stun belt, and Wrinkles claims
they rendered ineffective assistance as a result. We disagree. Although with
this opinion we declare that stun belts no longer have a place in
Indiana courtrooms, that was not the case at the time of Wrinkles trial.
Our prohibition is motivated primarily by the potential effect a stun belt
may have upon the person wearing the device. However, without the benefit
of this declaration, counsel were concerned about the effect on the jurors if
they were to observe their client wearing a particular device. Counsel believed
that the chance of the jury seeing the shackles was fairly high.
P-C R. at 1139. On the other hand, counsel opted for the
stun belt because they thought the jurors would not be able to see
it. P-C R. at 1139. Obviously, they were later proven wrong.
However, at the time the decision was made, it was a prudent
one. Tactical choices by trial counsel do not establish ineffective assistance of
counsel even though such choices may be subject to criticism or the choice
ultimately prove[s] detrimental to the defendant. Garrett v. State, 602 N.E.2d 139,
142 (Ind. 1992). Rather, [c]ounsel is afforded considerable discretion in choosing strategy
and tactics, and we will accord that decision deference. Conner, 711 N.E.2d
at 1248. Wrinkles has not demonstrated that counsels strategic decision in choosing
a stun belt as opposed to shackles rises to the level of ineffective
assistance of counsel.
As for counsels failure to object to the trial courts order, it is
error for a trial court to require a defendant appearing before the court
to wear restraints as a matter of course. Rather, the restraints must
be necessary, and the reasons supporting the trial courts determination must be placed
on the record.
Coates, 487 N.E.2d at 169. Nonetheless, the record reflects
that the trial court apparently has a policy of requiring defendants to wear
restraints regardless of whether they have previously exhibited any conduct justifying restraints.
P-C R. 1139-40. Attorney Danks testified at the post-conviction hearing that neither
he nor attorney Vowels objected to the trial courts order because the trial
judge would have ordered Wrinkles to wear shackles instead. P-C R. at
1139-40. Thus, even though the trial courts policy would not likely withstand
appellate scrutiny if the issue were presented, it is apparent that at least
at the time of Wrinkles trial, an objection to wearing restraints would not
have been sustained by the trial judge even if made. Accordingly, Wrinkles
has not sustained his burden of demonstrating that counsels performance on this issue
fell below an objective standard of reasonableness.
Victim Impact Statement
The Pre-sentence Investigation Report contained a statement from Mae McIntire recommending that Wrinkles
receive the death penalty.
McIntire had been responsible for raising Wrinkles wife
Debbie and her brother Mark. Wrinkles contends counsel should have objected to
this statement because it violated Bivins, which provides that victim impact evidence can
only be admitted in death penalty cases if it is relevant to an
aggravating or mitigating circumstance. See Bivins, 642 N.E.2d at 957. Assuming
counsel should have objected to this statement on the ground that it is
not relevant to the multiple murder aggravator, which is the charged aggravator in
this case, Wrinkles has not shown that the trial court even relied on
this statement in imposing the death penalty. In fact, the trial court
did not mention this statement in either its sentencing statement or its sentencing
order. R. at 399-403, 3372-80. Further, the evidence supporting the multiple
murder aggravator is strong in that Wrinkles confessed to shooting all three victims.
See Bivins, 642 N.E.2d at 957 (holding that admission of improper victim
impact evidence was harmless beyond a reasonable doubt in part because of the
strong evidence of the charged aggravating circumstance . . . .). The
post-conviction court did not err in concluding that counsel were not ineffective for
failing to object to Mae McIntires statement.
Wrinkles Prior Bad Acts
The State introduced evidence through two witnesses of Wrinkles aggressive behavior toward his
Counsel lodged no objections to this testimony. Wrinkles contends that
[o]bjections to any of this testimony would have been sustained because it was
inadmissible and that he was prejudiced because [the testimony] made him appear violent
and dangerous. Br. of Appellant at 31. The State counters that
this testimony was admissible to show Wrinkles motive and that he was not
prejudiced in light of the facts of the shootingsWrinkles donned himself in camouflage,
cut the phone lines, and shot his wife, brother-in-law, and sister-in-law in the
presence of children.
Although evidence of other crimes, wrongs, or acts is not admissible to show
action in conformity therewith, such evidence may be admissible for other purposes, such
as motive. Evid.R. 404(b);
see also Cook v. State, 734 N.E.2d 563,
567 (Ind. 2000) ([E]vidence of motive is always relevant in the proof of
a crime.), rehg denied; Charlton v. State, 702 N.E.2d 1045, 1050 (Ind. 1998)
(finding evidence of a protective order relevant to show the hostile relationship that
existed between the defendant and the victim in order to prove motive for
the murder and not unduly prejudicial because of the other damaging evidence against
the defendant). Accordingly, Wrinkles has failed to prove that an objection to
such testimony would have been sustained if made. Further, in light of
the fact that Wrinkles admitted shooting Debbie, Mark, and Natalie, he has failed
to show prejudice. The post-conviction court did not err in concluding that
counsel were not ineffective for failing to object to this testimony.
Prosecutors Comments during Closing Argument
During summation the prosecutor referred to Wrinkles as a psychopath and sociopathic.
Wrinkles contends counsel should have objected because [t]here was no evidence to support
the prosecutors labels and [t]hese comments could only be meant to inflame the
passions or prejudices of the jury. Br. of Appellant at 32 (quotation
Wrinkles has not shown that an objection to the prosecutors comments would have
been sustained if made. There was testimony introduced at trial that Wrinkles
had been diagnosed as suffering from at least five mental illnesses. R.
at 2994-96. Under those circumstances the comments of the prosecutor were fair
characterizations of the evidence.
See Miller v. State, 623 N.E.2d 403, 408
(Ind. 1993) (finding no error where the prosecutor called the defendant a disparaging
name because he was merely commenting on the evidence). Further, counsel may
have had a strategic reason for not objecting, such as that an objection
would have called even more attention to the prosecutors remarks. See Charlton,
702 N.E.2d at 1051-52 (holding that counsel was not ineffective for failing to
object to the prosecutors closing argument because counsel could have made a strategic
decision not to object). The post-conviction court did not err in concluding
that counsel were not ineffective for failing to object to the prosecutors remarks
in closing argument.
Debbie Whites Testimony
Although she was not listed as a States witness, Debbie White, a bookkeeper
at Goldmans Pawn Shop, testified without objection that Mark pawned two shotguns in
May 1994. R. at 2498-99. This was the substance of her
entire testimony. Counsel then briefly cross-examined her. R. at 2501-02.
Wrinkles contends that counsel were ineffective for failing to object because [h]er testimony
undermined the defense theory that the Fulkersons house was heavily armed. Br.
of Appellant at 33. Although had counsel objected, the trial court should
have granted either a continuance or an adjournment to allow counsel to depose
the witness, see Craig v. State, 737 N.E.2d 442, 444 (Ind. Ct. App.
2000), Wrinkles has failed to establish prejudice because he has not shown that
counsel would have questioned her differently had she been deposed or a continuance
granted. The post-conviction court did not err in concluding that counsel were
not ineffective for failing to object to Debbie Whites testimony.
Mishandling of the Murder Weapon
When Officer James VanCleave recovered the murder weapon, a .357 magnum revolver, it
appeared to be functioning. However, Sergeant Edward Wessel testified at trial that
the weapon was inoperable when he received it for testing and that it
took him thirty to forty-five minutes to repair it. R. at 2431,
2477. Wrinkles alleges that the State mishandled the weapon while in its
possession and that counsel were ineffective for failing to object to its admission
because it was not in substantially the same condition as at the time
of the crime. Br. of Appellant at 33 (quotation omitted).
Wrinkles has failed to prove that an objection would have been sustained if
made because the weapon was operable when admitted into evidence and Sergeant Wessel,
after repairing the weapon, was able to determine that eleven bullets recovered from
the crime scene and the victims bodies were fired by the weapon.
R. at 2433-34. Further, Wrinkles has not shown prejudice in that he
admitted firing the weapon. R. at 2753. The post-conviction court did
not err in concluding that counsel were not ineffective for failing to object
to the admission of the murder weapon.
D. Failure to Tender Jury Instruction on Life Without Parole
Wrinkles argued before the post-conviction court that counsel were ineffective for failing to
tender a jury instruction on life without parole. Indiana Code section 35-50-2-9(d)
requires a trial court in a capital case to instruct the jury on
the statutory penalties for murder: death, life without parole, or a term
of years. Although the trial court failed to give such an instruction,
we held on direct appeal that the error was not reversible. Wrinkles,
690 N.E.2d at 1171. Having reached that conclusion, we also conclude that
for the same reasons, counsel did not render ineffective assistance. See Douglas
v. State, 634 N.E.2d 811, 821 (Ind. Ct. App. 1994) (holding that if
there is no reversible error, then the prejudice prong of ineffective assistance of
counsel is not met), trans. denied; see also Holleman v. State, 641 N.E.2d
638, 641 (Ind. Ct. App. 1994) (holding that absent a showing of any
reversible error at trial, the defendant could not establish on post-conviction that counsel
was ineffective), trans. denied.
E. Inadequate Penalty Phase Investigation and Presentation
Before the post-conviction court, Wrinkles claimed ineffective assistance based on counsels alleged inadequate
investigation for the penalty phase of trial and insufficient presentation of evidence in
mitigation of the death sentence. More specifically, Wrinkles argues that counsel failed
to investigate and present the impact of [his] drug addiction on his mental
health, as well as other aspects of his background and personality. Br.
of Appellant at 47. He claims that if such evidence had been
presented during the penalty phase, the jury would have sentenced him to a
term of years rather than death.
The record shows that before the penalty phase of trial began on May
20, 1995, the trial court incorporated the evidence from the guilt phase of
trial. R. at 3193. Counsel specifically requested that Dr. Engums guilt
phase testimony and report be incorporated. R. at 3230. On May
19, 1995, just one day before the penalty phase, Dr. Engum testified in
depth about Wrinkles various mental illnesses, one of which was amphetamine dependence, with
the likelihood of amphetamine-induced psychotic disorder with delusions, which is basically saying he
bec[a]me increasingly paranoid when he would abuse the methamphetamine. R. at 2994-95.
Dr. Engum then explained the effects of Wrinkles amphetamine dependence on his
behavior. R. at 2995.
Despite this incorporated testimony, Wrinkles argues that counsel should have called an expert
during the penalty phase who could have explained to the jury how dangerously
addictive methamphetamine is and how addicts become violent and paranoid. Br. of
Appellant at 55. However, Dr. Engum testified during the guilt phase to
just thata pretty typical trait of severe methamphetamine abuse [is that the individual]
become[s] increasingly aggressive, angry, hostile; in some cases, violent aggressive, but highly paranoid.
R. at 2995. When mitigating evidence has already been presented at
the guilt phase of trial, counsels failure to duplicate this evidence during the
penalty phase of trial does not constitute deficient performance.
Wisehart v. State,
693 N.E.2d 23, 48 (Ind. 1998); see also I.C. § 35-50-2-9(d) (providing that
the jury may consider all the evidence introduced at the trial stage of
the proceedings [during the penalty phase].); Benefiel v. State, 716 N.E.2d 906, 913
(Ind. 1999) (While hearing the same testimony again at the penalty phase might
have reinforced the idea that the mental disease discussed during the guilt phase
could have mitigating weight, we cannot say that the failure to reintroduce the
testimony created a reasonable probability that the jury would have recommended against death.),
cert. denied, 121 S. Ct. 83 (2000).
Wrinkles real argument seems to be that counsel should have called an additional
expert, such as Dr. Evans or Dr. Smith, during the penalty phase to
further explore his methamphetamine addiction. Attorney Vowels testified at the post-conviction hearing
that he did not want to dwell on Wrinkles methamphetamine addiction during the
penalty phase because he did not want Wrinkles to appear as a heavy
doper. P-C R. at 1327. This was a strategy decision that
we will not second-guess.
See Lambert, 743 N.E.2d at 743 (holding that
it was reasonable for counsel to emphasize the defendants character during the penalty
phase instead of relying on complicated mental health issues); Timberlake, 690 N.E.2d at
261 (As a matter of trial strategy, a defense counsel in a capital
case may decide what is the best argument to present during the penalty
phase. After an investigation into potentially mitigating evidence, a defense counsel may
decide that it would be better for his client not to argue, as
mitigation evidence, defendants background history such as a history of drug abuse and
a bad family life.) (citations omitted); Hayes v. Lockhart, 852 F.2d 339, 352
(8th Cir. 1988) (observing that counsels decision not to present additional mitigating evidence
regarding defendants drinking problem was a reasonable trial tactic, one that was based
upon counsels calculated assessment that the risk of probable harm exceeded the possible
benefit that might have resulted . . . .), judgment vacated on other
grounds, 491 U.S. 902 (1989).
Wrinkles next contention concerns evidence of his background and personality. During the
penalty phase of trial, counsel called Steven Brock, a sentencing consultant and mitigation
specialist who, before testifying, interviewed approximately forty people including Wrinkles and his family,
friends, and customers. R. at 3231, 3237. He also reviewed Wrinkles
medical and educational records, depositions conducted in the case, and Dr. Engums report.
R. at 3240. Brock testified in great detail about Wrinkles early
years, particularly that he grew up in a troubled home with an alcoholic
father who physically and verbally abused his wife and children. R. at
3243-47. Brock also identified other mitigators: Wrinkles lack of significant criminal
history, R. at 3249; he was under extreme mental and emotional disturbance when
he committed the murders, R. at 3249; his capacity to appreciate the criminality
of his conduct and to conform his conduct to the law was substantially
impaired as a result of mental disease or defect, R. at 3249-50; he
has a psychological profile as put forth by Dr. Engum as a paranoid
individual who sees conspiracies everywhere, R. at 3251; and his daughter Lindsay Wrinkles
and the guardians of the Wrinkles and Fulkerson children did not want him
executed, R. at 3259.
In this appeal, Wrinkles challenges Brocks testimony on two grounds. First, he
argues that allowing Brock to testify instead of his family, friends, and customers
gave the impression that Wrinkles had no one who cared about him and
had to pay someone to testify on his behalf. Br. of Appellant
at 48. However, this was a tactical decision that we will not
second-guess. See Wisehart, 693 N.E.2d at 48 n.26 ([W]hich witnesses to call
is the epitome of a strategic decision.) (quotation omitted).
Next, Wrinkles argues that Brock left out important information in his summary.
For example, Wrinkles points to the following post-conviction witnesses: his mother and
brother gave examples of the abuse he received as a child from his
alcoholic father; his friends testified that he abused drugs and had not been
acting like himself weeks before the murders; and his customers testified that he
was a good mechanic who went out of his way for them.
However, Wrinkles family testified to the same events at the post-conviction hearing that
Brock testified to during the penalty phase of trial. Compare P-C R.
at 378-88, 389-98 with R. at 3244-46. Therefore, their testimony would have
been cumulative to Brocks testimony. Further, Wrinkles drug use was presented during
the guilt phase through four lay witnesses, one expert witness, and Wrinkles himself.
R. at 2711-12, 2715, 2720, 2722-23, 2834, 2843, 2861-62, 2931-32, 2935-37, 2994-97,
3002, 3006-07. See Wisehart, 693 N.E.2d at 48 ([W]hen mitigating evidence has
already been presented, the failure of counsel to duplicate during the penalty phase
the mitigating evidence presented to the jury during the guilt phase does not
constitute deficient performance.). Finally, as far as Wrinkles customers are concerned, counsel
could have made a decision not to call them because they possibly would
have been exposed to Wrinkles bad acts on cross-examination. This was a
strategy call that we will not second-guess. See Brown v. State, 691
N.E.2d 438, 447 (Ind. 1998) (identifying that [a] decision regarding what witnesses to
call is a matter of trial strategy which an appellate court will not
second-guess . . . .). The post-conviction court did not err in
concluding that counsel were not ineffective on these grounds.
F. Failure to Present Mitigating Evidence During The Sentencing Phase
Wrinkles argues the post-conviction court erred when it refused to conclude that counsel
were ineffective based on their alleged failure to present evidence during the sentencing
phase of trial supporting a sentence other than death. Contrary to Wrinkles
claim, the record shows that counsel prepared a thorough and detailed forty-page sentencing
memorandum and attorney Danks made an oral argument to the trial court on
why the court should not impose the death penalty. R. at 267-307,
The record also shows that during the penalty phase of trial counsel presented
evidence concerning Wrinkles drug use, personality, and social history. To the extent
Wrinkles argues that counsel should have presented the evidence anew during the sentencing
phase of trial, he is mistaken. Where counsel has already presented mitigating
evidence during the guilt phase of trial and discussed it during the penalty
phase, presenting the evidence again during the judge sentencing phase of trial is
Wisehart, 693 N.E.2d at 49. We find no error on
G. Indiana Criminal Rule 24 Violation
For his last allegation concerning ineffective assistance of trial counsel, Wrinkles argued before
the post-conviction court that counsel acted deficiently because throughout his representation each lawyer
carried a felony caseload far in excess of that permitted under Indiana Criminal
Rule 24(B)(3). The Rule provides in pertinent part: [a]ppointed counsel shall not
accept workloads which, by reason of their excessive size, interfere with the rendering
of quality representation or lead to the breach of professional obligations. Id.
Salaried or contractual public defenders can only be appointed as trial counsel
in capital cases if:
(i) the public defenders caseload will not exceed twenty (20) open felony cases while
the capital case is pending in the trial court;
(ii) no new cases will be assigned to the public defender within thirty (30)
days of the trial setting in the capital case;
(iii) none of the public defenders cases will be set for trial within fifteen
(15) days of the trial setting in the capital case; and
(iv) compensation is provided as specified in paragraph (C).
Ind. Crim. Rule 24(B)(3)(c).
Although attorney Danks was in compliance with subsection (B)(3)(c)(i) of Rule 24 when
he was appointed lead counsel on July 21, 1994, he was out of
compliance a month later. When attorney Vowels was appointed co-counsel on July
28, 1994, his inventory of public defender cases totaled forty-two open felony cases,
more than twice the maximum permitted. At one point attorney Danks felony
caseload reached thirty-three while attorney Vowels felony caseload reached fifty-six. In February
1995, just three months before Wrinkles trial began, attorney Vowels finally asked the
trial court to remove him from some cases so he could devote more
time to Wrinkles case. P-C R. at 575. The trial court
subsequently removed attorney Danks from four cases and attorney Vowels from seven cases.
P-C R. at 575. However, because lawyers Danks and Vowels did
not inform the trial court exactly how many felony cases were in their
inventory or how far they were over the twenty-case limit,
see P-C R.
at 1186, 1231, these removals still did not put them in compliance with
subsection (B)(3)(c)(i). Also, in addition to their public defender felony caseloads, both
attorneys maintained substantial private practices, and the record is silent on the number
of additional private felony cases that counsel carried during their representation of Wrinkles.
II. Ineffective Assistance of Appellate Counsel
Further, the caseloads of lawyers Danks and Vowels violated subsection (B)(3)(c)(ii) of Rule
24, which prohibits the assignment of new cases to the public defender within
thirty days of a capital trial. Attorney Danks was assigned two public
defender cases within thirty days of Wrinkles trial, and attorney Vowels was assigned
five public defender cases within thirty days of Wrinkles trial. Attorney Vowels
caseload also violated subsection (B)(3)(c)(iii) of Rule 24, which specifies that none of
the public defenders cases may be set for trial within fifteen days of
the capital trial. Attorney Vowels represented Bruce Anthony at trial on a
felony battery charge on May 3, 1995, just eight days before voir dire
in Wrinkles case.
Wrinkles contends the foregoing Criminal Rule 24 violations created an actual conflict of
interest, violated his equal protection and due process rights, and represented ineffective assistance
of counsel per se. According to Wrinkles, a new trial is warranted.
We recently addressed the remedy for a violation of Criminal Rule 24
Prowell. In that case, the trial court appointed lawyers Danks and
Vowels, the same attorneys as here, to represent Vincent Prowell in a capital
case. Attorney Vowels carried a felony caseload in violation of Criminal Rule
24 throughout his representation of Prowell. We determined that the remedy for
a Criminal Rule 24 violation is the withholding of fees and expenses.
More specifically, we observed that the State may refuse to compensate a county
for attorneys fees and expenses where a defense attorney is found to be
in violation of the caseload limits prescribed by the rule without the courts
permission. Prowell, 741 N.E.2d at 716. Presumably, the county would then
penalize the lawyer who violated the rule by withholding payment for time spent
on cases where the rule was violated. Experience suggests that lawyers are
likely to observe rules if their paychecks depend on it. Id.
We also noted that trial courts are not expected to police sua sponte
the caseloads of the counsel appearing before them. It is incumbent upon
defense counsel to raise any issue presented by counsels workload in excess of
the limits laid out in the rule. Id.
Pointing out that both lawyers in this case violated Criminal Rule 24, Wrinkles
suggests that the paycheck remedy is not sufficient in this case and insists
that he is entitled to a new trial. According to Wrinkles, counsel
rendered ineffective assistance precisely because they were in non-compliance with Criminal Rule 24.
We disagree. The record shows otherwise. Attorney Danks testified at
the post-conviction hearing that his caseload did not allow him adequate time to
prepare for Wrinkles trial. P-C R. at 920. However, he also
testified that he never had enough time to prepare for any trial, not
just this one. P-C R. at 1147, 1175. Attorney Danks testified
further that this lack of time did not interfere with any legal research
or interviewing of witnesses. P-C R. at 921. Attorney Vowels testified
at the post-conviction hearing that he had enough time to prepare for Wrinkles
trial. P-C R. at 1325.
The record shows that in preparation for trial both lawyers engaged in the
following activities: met regularly to discuss the direction and progress of the
case, P-C R. at 1207, 1208, 1317; met with Wrinkles several times before
trial, P-C R. at 1162-68, 1296-1310; interviewed witnesses, P-C R. at 568, 1171-72,
1316; consulted numerous times with trial investigator Mark Mabrey, sentencing consultant and mitigation
specialist Steven Brock, and neuropsychologist Dr. Eric Engum, P-C R. at 567, 1318,
1321, 2396-97; consulted other experts including Paula Sites, P-C R. at 1297, 1304,
1305, 1307; sought discovery and filed multiple pretrial motions, R. at 29-30, 34-37,
39-40, 42-43; P-C R. at 567, 1313; prepared and filed briefs in support
of various motions, R. at 47-94; prepared witnesses for trial, P-C R. at
1043, 1044, 1203, 1204; deposed approximately thirty potential witnesses, P-C R. 1165-66, 1200,
1305-06, 1308; visited the crime scene, P-C R. at 1199, 1322; viewed videotapes
and pictures of the crime scene, P-C R. at 1322; and read the
police and autopsy reports, P-C R. at 1200-01, 1322.
Attorney Danks billing records reflect that he spent 319 hours on Wrinkles case,
and attorney Vowels billing records show that he spent 401 hours on Wrinkles
case. P-C R. at 1177, 1302, 1310. Both attorneys testified at
the post-conviction hearing that they spent more time on Wrinkles case than they
actually billed for. Norman Lefstein, Dean and Professor of Law at Indiana
University School of LawIndianapolis, testified as an expert on ineffective assistance of counsel
and noted that the average time spent on a capital case that goes
to jury trial through completion is 1,000 hours for two attorneys. P-C
R. at 1702. He testified that that number varies depending on the
complexity of the case. P-C R. at 1702. Here, lawyers Danks
and Vowels spent more than 720 hours on a capital case in which
the defendant confessed. We cannot conclude that the post-conviction court erred in
its determination that counsel were not ineffective based solely on their non-compliance with
Criminal Rule 24.
The standard of review for a claim of ineffective assistance of appellate counsel
is the same as for trial counsel; that is, the defendant must show
that appellate counsel was deficient in his performance and that this deficiency resulted
in prejudice. Ben-Yisrayl, 729 N.E.2d at 106. This Court has recognized
three types of ineffective assistance of appellate counsel claims, namely: (1) counsel
denied the defendant access to appeal; (2) counsel waived issues; and (3) counsel
failed to present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95
(Ind. 1997). As Wrinkles concedes, the second category is the only category
applicable here. This category will lead to a finding of deficient performance
only when the reviewing court determines that the omitted issues were significant, obvious,
and clearly stronger than those presented. Id. at 194 (quotation omitted).
This is because the decision of what issues to raise is one of
the most important strategic decisions to be made by appellate counsel. Id.
at 193 (quotation omitted).
Wrinkles contends that the post-conviction court erred in its conclusion that his appellate
counsel were not ineffective for not raising the following issues on direct appeal:
(1) the trial court committed fundamental error in admitting evidence of Wrinkles
prior bad acts; (2) the trial court committed fundamental error when it considered
a victim impact statement which was contained in the Pre-sentence Investigation Report; and
(3) the trial court committed fundamental error by not giving an instruction on
life without parole. We addressed issues (1) and (2) in the context
of ineffective assistance of trial counsel and concluded that trial counsel were not
ineffective for failing to object to evidence of Wrinkles aggressive behavior toward Debbie
and the victim impact statement. Therefore, the post-conviction court did not err
in concluding that appellate counsel were not ineffective for failing to raise these
issues on direct appeal.
See Woods v. State, 701 N.E.2d 1208, 1221
(Ind. 1998) ([I]neffective assistance of appellate counsel requires the petitioner to overcome the
double presumption of attorney competence at both trial and appellate levels.). As
for (3), counsel raised, and we addressed, this issue on direct appeal.
See Wrinkles, 690 N.E.2d at 1171. Again, the post-conviction court did not
err in concluding that Wrinkles did not receive ineffective assistance of appellate counsel.
Wrinkles has failed to prove that the evidence as a whole leads unerringly
and unmistakably to a decision opposite that reached by the post-conviction court.
Accordingly, we affirm the post-conviction courts denial of Wrinkles petition for post-conviction relief.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
BOEHM, J., concurs in all parts except Part I.C.1 in which he concurs
in result with separate opinion.
ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
Laura L. Volk
Deputy Public Defenders
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
SUPREME COURT OF INDIANA
MATTHEW ERIC WRINKLES, )
Appellant (Petitioner Below), )
v. ) Indiana Supreme Court
) Cause No. 82S00-9803-PD-170
STATE OF INDIANA, )
Appellee (Respondent Below). )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl Heldt, Judge
Cause No. 82C01-9407-CF-447
ON PETITION FOR POSTCONVICTION RELIEF
June 29, 2001
Justice, concurring and concurring in result.
I concur in all parts of the majority opinion except Part I.C.1, in
which the majority categorically prohibits use of the stun belt in Indiana courtrooms.
I generally agree with the points the majority makes about the use
of the belt, and I certainly agree that trial court findings are required
before any form of courtroom restraint is to be used. However, trial
courts are often faced with hard choices. It is not at all
clear to me that the belt is a less desirable alternative to restraints
that are plainly visible and convey to the jury the message that the
defendant cannot be trusted to comport himself in a manner consistent with courtroom
decorum. Indeed, I would think some defendants might, as did Wrinkles in
this case, prefer the belt to a gag or more visible restraints.
The majority is surely correct that any of these alternatives is to be
used only where necessary and where supported by appropriate findings. But where
some form of restraint is to be used, I would not categorically prohibit
the belt in favor of others that may be even more hostile to
a fair trial.
I concur in the majoritys view that Wrinkles had not shown ineffective assistance
of counsel for failure to object to the use of the belt.
Trial counsel here were faced with a very difficult guilt phase, to say
the least. Conviction seems to me to have been virtually a foregone conclusion,
with the penalty being the only realistic battleground for defense counsel. To
decide not to take issue with the trial judge on this issue would
seem to me to be well within the sort of judgment that lawyers
are forced to make. Accordingly, I concur in the result reached by
R. refers to the trial court record, and P-C R. refers
to the post-conviction court record.
Footnote: The multiple murder aggravator requires that [t]he defendant has committed another
murder, at any time, regardless of whether the defendant has been convicted of
that other murder. Ind. Code § 35-50-2-9(b)(8). This subsection is considered
in cases involving double or multiple murders for which the defendant is being
tried in one proceeding.
Pope v. State, 737 N.E.2d 374, 381 n.4
(Ind. 2000) (citing Hough v. State, 560 N.E.2d 511, 519 (Ind. 1990)).
Claims that are available, but not presented, on direct appeal are
waived for post-conviction review unless the claimed error is fundamental.
State, 711 N.E.2d 1238, 1246 (Ind. 1999), cert. denied, 121 S. Ct. 81
(2000). In order to avoid waiver, Wrinkles argues that the following freestanding
issues represent fundamental error: (1) did the trial court err in forcing
him to wear a stun belt without establishing a need for it on
the record; and (2) did the prosecutor commit prosecutorial misconduct? However, in
order to demonstrate fundamental error in a post-conviction proceeding, a defendant must persuade
the court, by a preponderance of the evidence, that a violation of basic
principles of law caused the defendants conviction or sentence to be invalid.
Id. As for issue (1), Wrinkles merely says [t]his issue is
available on post-conviction. Use of the shock belt constitutes fundamental error .
. . . Br. of Appellant at 22. As for issue
(2), Wrinkles proclaims [t]he State misconduct here, individually and/or cumulatively, constituted fundamental error.
Br. of Appellant at 81. Post-conviction procedures do not provide a
petitioner with an opportunity to present freestanding claims that contend the original trial
court committed error. Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001).
In this case, Wrinkles has failed to meet the standard required to
demonstrate fundamental error. The issues he contends are available for review as
freestanding claims are waived.
Wrinkles also argues that issue (1) is available for post-conviction review. He
asserts that it was unknown and unavailable on direct appeal because there was
nothing in the record indicating that Wrinkles wore a stun belt during trial.
To the contrary, as even Wrinkles points out, The shock belt vibrated
once during trial, Br. of Appellant at 21, at which point attorney Danks
asked for a recess. After it was determined that the batteries were
low, the batteries were replaced, and the trial resumed. P-C R. at
1142-44. Further, attorney Danks was co-counsel on Wrinkles direct appeal. Therefore,
he had knowledge about the use of the stun belt.
Lastly, Wrinkles contends on post-conviction that his death sentence constitutes cruel and unusual
punishment because of unfair and unreliable sentencing procedures. Br. of Appellant at
96. We reviewed Wrinkles death sentence on direct appeal and found it
to be appropriate. Wrinkles, 690 N.E.2d at 1173. To the extent
Wrinkles now seeks to relitigate the appropriateness of his death sentence, his claim
is barred by res judicata. See State v. Holmes, 728 N.E.2d 164,
168 (Ind. 2000) (stating that as a general rule, when this Court decides
an issue on direct appeal, the doctrine of res judicata applies, thereby precluding
its review in post-conviction proceedings), cert. denied, 121 S. Ct. 2220 (2001).
To the extent Wrinkles challenges his sentence on grounds not presented on direct
appeal, he has waived his challenge. In this appeal, we address only
those claims raised in the context of ineffective assistance of counsel.
See, e.g., Young v. Georgia, 499 S.E.2d 60, 61 (Ga. 1998)
(holding that use of an electronic security measure is permissible where it is
shielded from view and defendant is not harmed by its use). Hollaway
v. Nevada, 6 P.3d 987, 994 (Nev. 2000) (noting that although stun belts
are okay in some instances, reversal of the death sentence in this case
was necessary because the accidental activation of the stun belt reinforce[d] the image
of [the defendant] as an extremely violent man with whom authorities had to
take exceptional security precautions.).
For example, in
Flowers v. State, 738 N.E.2d 1051 (Ind. 2000),
rehg denied, the defendant threatened the trial judge. After conducting a hearing,
the judge ordered the defendant to wear a stun belt for the remainder
of the trial. The defendant subsequently filed motions for change of judge
and mistrial on grounds that the trial court was biased and prejudiced as
evidenced by the stun belt. On direct appeal, we found that the
trial court was not biased or prejudiced in ordering the defendant to wear
the stun belt because of the concern for courtroom safety. Id. at
1061. The defendant did not challenge, and we did not address, the
issues raised in the instant appeal.
The victim impact statement states in part:
Mrs. McIntire feels that the defendant should receive the death penalty. She
reports that Lindsay, the defendants [daughter,] [h]as said she does not feel her
father should be put to death but she did not ever want to
see him again. The defendants son has made no comments con[c]erning this
sentence. Mrs. McIntire stated that he has shown no remorse and that
neither should the Court.
R. at 256.
Footnote: Wrinkles points to the following testimony. Steve Culley, Debbies divorce
attorney, testified that Wrinkles made harassing phone calls to the Fulkerson home while
Debbie was staying there and that Wrinkles was concerned that the Prosecutor may
be pressing charges and putting him in jail [for those calls because of
the protective order that was in place at the time] . . .
. R. at 2248.
David Plemmons, Wrinkles friend, testified that in May 1994, two months before the
shootings, Wrinkles and Debbie got into an argument; Wrinkles retrieved a gun, cocked
it, and pointed it at Debbie; Debbie grabbed the gun in defense, and
it discharged; a neighbor called police; and when police arrived he and Debbie
covered for Wrinkles. R. at 3097-98. When asked on cross-examination if
he recalled this incident, Wrinkles responded, Not really. R. at 2737.
When asked if he denied that the incident happened, Wrinkles responded, I dont
remember it. R. at 2738.
The prosecutor stated:
So, the only way [Wrinkles] can avail himself of [Voluntary] Manslaughter is if
he is an ordinary man a reasonable man, an average man; although
you can decide what ordinary means. In other words, psychopaths, like Eric
Wrinkles, dont get the benefit of [Voluntary] Manslaughter. Just because theyre sociopathic
doesnt mean they can have these feelings that its okay to kill someone
and therefore its sudden heat.
R. at 3172.
In addition to Brock, counsel called Mary Winnecke, Carolyn Casper, and
Lindsay Wrinkles at the penalty phase.
Mary Winnecke, Natalie Fulkersons mother and
the legal guardian of the Fulkerson children, testified during the penalty phase of
trial that Wrinkles had been under the influence of drugs for the
last five years and that he thought there was a conspiracy to get
him. R. at 3205, 3206. Winnecke testified further that she did
not think Wrinkles should be sentenced to death because she is religiously opposed
to such punishment. R. at 3208-09. Carolyn Casper, the legal guardian
of the Wrinkles children, testified during the penalty phase of trial that she
did not want Wrinkles to receive the death penalty because of the adverse
effect it would have on the children. R. at 3218-19. Lindsay,
Wrinkles daughter, also testified during the penalty phase of trial that she did
not want her father to receive the death penalty. R. at 3229.